abatement was the proper remedy. The court did not pass, however, upon the point as to whether a motion to correct, or a motion to dismiss the complaint only, on the ground of variance, might not be admissible. See also, as to a defence containing matter purely in abatement, in connection with one on the merits, Van Buskirk vs. Roberts, 14 How., 61.

The present will also be the proper stage for making a motion for the same purpose, on the ground of variance between the summons and complaint, the preponderance of decisions leading to this conclusion, i. e., that where such variance is established, it is the complaint, and not the summons, which is defective, the latter being the proceeding first in order, and the motion should be framed accordingly. See this point fully considered, and numerous decisions cited heretofore, under the head of Summons, book III., section 51. See also book VII., section 139. The right to make a motion of this description will be waived by demurring. See Campbell vs. Wright, 21 How., 9.

A motion to set aside will also be the appropriate remedy in a case where an action has been commenced on a judgment without obtaining the previous leave of the court, as prescribed by section 71. Finch vs. Carpenter, 5 Abb., 225.

A motion of this nature, or for a stay of proceedings, will also be appropriate in the case of suit brought by or against a receiver, or on behalf of or against a lunatic, without previous leave of the court. And, where the objection is only apparent on the face of the complaint, it will not be waived by a previous appearance and demand of a copy. Vide Taylor vs. Baldwin, 14 Abb., 166.

It was also held in Shepard vs. Walker, 7 How., 46, that the now untenable objection that a suit in chancery is brought for a claim of less than one hundred dollars, was properly raised in this manner.

Mere technical objections on the ground of irregularity will not, however, be favored. Van Namee vs. Peoble, 9 How., 198; Yates vs. Blodgett, 8 How., 278; Van Benthuysen vs. Stevens, 14 How., 70. See also, as to answer, Wilkin vs. Gilman, 13 How., 225.

Where a complaint in ejectment wholly failed to describe the property claimed with sufficient certainty, as required by the statute, a motion for a dismissal was held maintainable at the trial, and probably might be made at the outset. Budd vs. Bingham, 18 Barb., 494.

So, where a complaint against a foreign corporation wholly failed to state the facts necessary to confer jurisdiction under section 427 of the Code, a motion to dismiss was granted. House vs. Cooper, 30 Barb., 157; 16 How., 292.

As to a motion that the complaint be made more definite and certain, see Waters vs. Clark, 22 How., 104.

The applications above noticed have all reference to a total discrepancy or deficiency in the plaintiff's proceedings. Those grounded on partial defects will also be in order at this stage, such as applications under section 160, on the ground of irrelevancy, redundancy, or uncertainty. They must, in fact, by the special provisions of rule 50 (40), be noticed before demurring to, or answering the pleading sought to be impeached, and within twenty days from the service thereof. If not, they will be waived. Vide Campbell vs. Wright, 21 How., 9. No special appearance or special signature to the notice will be admissible; the proceeding being one in the ordinary progress of the cause, and not preliminary in its nature.

The nature and characteristics of this class of motions have been already fully entered upon in chapter IV. of book VI. It will therefore be wholly unnecessary to refer to them on the present occasion.

It remains to notice, before passing on to the next section, a few other applications more peculiarly cognizable at this stage of the action.

(d.) MOTION TO STAY.

A motion of this nature, on the ground of irregularity or oppressiveness in the proceedings of the plaintiff, will be appropriate at this period. See, as to such a motion, Ten Broeck vs. Reynolds, 13 How., 462; Lynch vs. Cunningham, 6 Abb., 94. See, however, as to such an application, on the ground of non-payment of the costs of a former action, Davis vs. Duffie, 5 Duer, 688; 3 Abb., 363.

See also, as to a motion to stay proceedings in an action against a receiver, commenced without leave of the court, Taylor vs. Baldwin, above cited.

(e.) MOTION TO ELECT.

Of a similar nature is an application that the plaintiff elect between inconsistent causes of action, or in the event of his pleading being bad for duplicity, or want of due separation of several causes of action, as prescribed by section 167.

In the latter case a motion to strike out, or to compel him to make such election, will be the appropriate remedy. The objection cannot be taken by demurrer, see Gooding vs. McAllister, 9 How., 123; Young TS. Eliards, 11 How., 201; Atwell vs. Le Roy, 15 How., 227; 4 Abb., 438. See also, Hess vs. Buffalo and Niagara Falls Railroad Company, 29 Barb., 391 (395); Cheney vs. Fisk, 22 How., 236.

But such a motion will not be granted except upon the assumption that the principle sought to be applied, is well settled law. If there be any doubt upon the point, the pleading should not be interfered

with, and the relief to be granted, left to be determined upon the trial. Redmond vs. Dana, 3 Bosw., 615.

(f) OTHER PRELIMINARY APPLICATIONS.

In ejectment cases, the defendant may require the production of the authority of the plaintiff's attorney, to commence the action, as provided by the Revised Statutes, 2 R. S., 305, 306, sections 17 to 21, the application being made ex parte, at any time before pleading, on affidavit that no proof of such authority has been served. See Howard vs. Howard, 11 How., 80.

Under circumstances calling for such interference, the court will also entertain an application that the residence and occupation of the plaintiffs, and also the authority of their attorney be disclosed: see Vincent and Forty-five Others vs. Vanderbilt, 10 How., 324; The Ninety-nine Plaintiff's vs. The Same, 1 Abb., 193; Decision of Supreme Court, p. 196; Decision of Superior Court, p. 199; also reported, 4 Duer, 633. See likewise, Board of Commissioners of Excise vs. Purdy, 22 How., 506; 13 Abb., 434. See form of order on such motion, as given, 1 Abb., 202; 4 Duer, 638.

But, when a responsible attorney appears, the court will not ordinarily inquire into the facts of his authority. Republic of Mexico vs. Arrangois, 5 Duer, 634; 1 Abb., 437. See same case, 3 Abb., 470 (473).

(9.) MOTION IN RELATION TO PARTIES OR INTERPLEADER. A motion to bring in parties omitted by the plaintiff, will also be properly entertainable at this stage of the cause. See this subject heretofore fully considered, and the decisions in point cited under the head of Parties, book II., section 39.

So also will proceedings by a defendant standing in the position of a mere stakeholder to get rid of his responsibility, and be dismissed from the cause, by means of an order for interpleader obtained under section 122. This subject has also been fully considered, and the decisions in point cited, in the same book, section 40.

The application in the former case, if made by a party to the suit, must be brought forward by motion in the ordinary form, the facts necessary to show the title of the party to the relief asked for, being shown by affidavit. If made by a stranger to the record, a verified petition will be the more advisable form, which may or may not be supported by collateral affidavits. Notice must of course be given of such application, in the ordinary form, to all the parties.

A motion for the purpose of interpleader, must be made before answer (section 122). It must be grounded upon affidavits, showing upon its face that "a person not a party to the action, and without col

lusion with the applicant, makes against him a demand for the same debt or property;" this allegation should especially be made in terms, and a sufficiently full and specific statement of the facts should accompany it, showing clearly the circumstances of the case, the nature of the claim made, and the fact that the applicant has no personal interest in, or personal liability in respect of, the fund which is the subject of the motion.

The application must be made upon due notice to the claimant who is sought to be brought in, and also to the adverse party. The relief sought, is to substitute such claimant in the place of the applicant, as a party to the action, and to discharge the applicant himself from liability to either party, on his depositing in court the amount of the debt, or delivering the property or its value to such person as the court may direct. The notice of motion should be framed accordingly, asking also for payment of his costs, with the usual demand for further relief.

If the motion be granted, the applicant must see that the conditions of the order, as to the payment of the money, or delivery of the property, as directed by the court, are strictly and immediately complied with, as, until then, his discharge from the action will not be complete.

He will, as a general rule, be entitled to retain or to be paid his costs, and should make application to that effect at the time of the motion, and see that proper provision is made on the subject in the order. See Willetts vs. Waite, 13 How., 34; Miller vs. De Peyster, 1 Abb., 234.

On the order being granted, it will usually be necessary for the plaintiff to amend his complaint, and the substituted party will of course be entitled to demand and obtain a copy, and to have time to put in his answer in the usual course. It may be doubtful, however, whether, in strictness, he can make that demand, under section 130; and the better course will be for him to apply at the time of the motion, or afterwards, if necessary, for a special direction of the court upon the subject.

§ 162. Proceedings to Obtain Information.

(a.) DEMAND OF ACCOUNT OR PARTICULARS.

Although the complaint be perfect in its form, it may, in certain cases, be deficient in the necessary information for the defendant's guidance, in cases where an account is alleged, and the plaintiff avails himself of the permission conferred by section 158, and omits to state the items of it. In this case, the defendant should forthwith demand a. copy of such account, under the powers of that section.

VOL. II.-2

The demand so made must be in writing. The plaintiff must comply with it, and deliver a copy of the account alleged by him, within ten days, and the copy so furnished, must, if his pleading be verified, be also verified by his own oath, or by that of his agent or attorney, if within the personal knowledge of such agent or attorney. That oath must be to the effect, that the party so verifying, believes such account to be true.

The copy so delivered must, of course, contain all proper items. If defective, the court or judge, or a county judge, may order a further account; and, if so ordered, such further account must be delivered in the same manner.

The penalty for non-delivery in either case is, that the party so making default be precluded from giving evidence of such account.

And, by the same section (158), it is lastly provided, that the court may, in all cases, order a bill of particulars of the claims of either party to be furnished.

This last provision gives full power to the defendant to obtain from the plaintiff all proper information as to the items, details, or amount of his claim.

The Code of 1849 was defective, in confining the defendant's right, in such respects, to cases in which an account was alleged in the complaint. The amendment of 1851 cured this defect, and the defendant may now apply to the court in all proper cases.

Whenever, therefore, the statement of the plaintiff's case is too general, and the details require to be given, in order to enable the defendant to meet that case in a proper manner, he should apply forthwith for an order of this description, which may be obtained ex parte, and without any further evidence than that afforded by the pleading itself; and, if the plaintiff meet this requisition evasively, a second order, for a further and more particular bill, should be obtained. The plaintiff possesses similar rights as against the defendant, in cases where a set-off is claimed, or a counter-claim is made by the latter.

And, if in the answer an account is alleged, under the enabling provision of section 158, a demand may be made for it in the same manner as in the case of a complaint.

Special provision is made by the Revised Statutes, 2 R. S., 341, section 16 (saved by section 455 of the Code), enabling a defendant in ejectment to obtain a particular description of the premises claimed by the plaintiff. Under the preceding sections 13 to 15, inclusive, he is also empowered to have a survey of those premises made, if necessary. See, however, as to a complaint wholly deficient in giving a proper description, Budd vs. Bingham, 18 Barb., 494.

If the account or bill of particulars be defectively verified, it will no